Najeeb vs N.K. Babu and Others

K.J. Joseph J.

This appeal is filed by the injured who was the claimant in O.P. (M.V.) No. 278 of 1982 on the file of the Motor Accidents Claims Tribunal, Ernakularn. The first Respondent herein is the owner of the vehicle KLH 2518 and the 2nd Respondent is the driver of the said vehicle. The 3rd Respondent is the insurance company who issued an insurance policy in respect of the said vehicle.

In the original claim petition viz. O.P. (M.V.) No. 278/82, there were three other Respondents, viz. the driver of the Kerala State Road Transport bus, KLX3901, its owner, the General Manager, Kerala State Road Transport Corporation as Respondents 4 and 5. There was yet Anr. Respondent, viz. the 6th Respondent who was impleaded in the proceedings before the Tribunal as the person to whom the ownership of the vehicle KLH 2518 is alleged to have been transferred.

According to the claimant/Appellant, he was a passenger in the stage carriage bus bearing registration No. 2518 of which the first Respondent is the owner and the 2nd Respondent was the driver. He sustained injuries in an accident in the said bus while he was travelling. The bus collided with K.S.R.T.C. bus bearing registration No. KLX 3901 at about 6.00 p.m. on 20th August 1981. According to the claimant, the accident had taken place due to the rash and negligent driving of the bus KLH 2518 and therefore, the owner of the vehicle viz. the first Respondent is responsible for payment of the compensation in respect of the injury sustained by him in the accident.

The Appellant/claimant at the relevant time was a student in the pre-degree class. He was very proficient in sports and games. Due to the accident, he had to discontinue his studies for one year. He sustained injuries and fracture. He was removed to the General Hospital, Ernakulam where he was treated for 11/2 months. He, therefore, preferred the claim petition claiming a total compensation of Rs. 65,950 on all counts. But the same was limited to an amount of Rs. 50,000.

On notice, the Respondents contested the matter. According to the 1st Respondent, who is the owner of the bus KLH 2518, he was not actually its owner or operator1 at the time of the accident. According to him, he parted with possession of the vehicle as early as on 28th October 1980 under an agreement with one Dasan and ultimately by subsequent transfer''s, the ownership of the said vehicle was vested in the 6th Respondent in the claim petition. He, therefore, disputes his liability to pay any compensation to the injured person. According to the 2nd Respondent driver, the incident had taken place not in the manner alleged by the claimant. The 3rd Respondent insurance company had admitted that the vehicle was insured with them, but its liability is limited to an amount of Rs. 5,000 in case the driver of the vehicle was responsible for the accident. They have also produced the policy. In the written statement filed by the 4th and 5th Respondent before the Tribunal, they contended that they are not responsible for the accident and consequent payment. According to them, the accident had taken place due to the rash and negligent driving of the vehicle KLH 2518 in which the Appellant was a passenger.

To prove the case of the Appellant, the claimant himself was examined as P.W. 1. He had produced Exts. A-1 to A-16. The Respondents did not examine any witness or produce any document. The learned Tribunal on consideration of the evidence, both oral and documentary, came to the conclusion that the accident had taken place due to the rash and negligent driving of the bus KLH 2518 in which the Petitioner was a passenger. The learned Tribunal negatived the contention taken by the driver of the vehicle that it was due to the rash and negligent driving of the K.S.R.T.C. bus that the accident had taken place. The learned Tribunal, therefore, came to the conclusion that the accident was due to the rash and negligent driving of the vehicle KLH 2518 for which Respondents 1 and 2 were responsible. The Tribunal also found that the vehicle is covered by tan Act policy wherein the liability of the insurance company is limited to an amount of Rs. 5,000 per passenger.

The Tribunal considered the claim of the claimant/Appellant, and found that the Appellant is entitled to get an amount of Rs. 200 by way of transportation charges. The Tribunal also awarded an amount of Rs. 750 for extra nourishment claimed by the Appellant. But the Tribunal negatived the claim for an amount of Rs. 20,000 towards shortened expectation of life and the further claim for Rs. 10,000 towards loss of national scholarship and one year in studies and also a further claim of Rs. 20,000 for the diminished prospects of achievements in the field of sports and games on the ground that the above claims are too remote and it would not be proper to countenance such claims. Thus, learned Tribunal had awarded an amount of Rs. 950 under Part I claim.

Under Part II claim, learned Tribunal awarded an amount of Rs. 2,500 as reasonable compensation for the pain and suffering that the Appellant had as against the claim of Rs. 10,000 made by him. The Tribunal further awarded an amount of Rs. 1,550 towards the 5 per cent disability for the Appellant due to the injury sustained by him. Thus a total amount of Rs. 4,050 was awarded by the Tribunal under Part II claim viz. for the pain and suffering and also for the disability. Aggrieved by the said award, the injured claimant had come up in this appeal before this Court praying for enhancement of the compensation awarded by the Tribunal.

We heard the learned Counsel for the Appellant as well as the learned Counsel for the Respondents. Admittedly, the Appellant sustained injuries in the accident caused due to the negligence of the driver of the vehicle KLH 2518. At the time of accident, he was a student in the Pre-degree class. He was in the hospital for months. Thereafter, he had to undergo treatment for about three months. The Tribunal was, therefore, just in awarding a total amount of Rs. 950 towards transportation and extra nourishment charges. The learned Counsel appearing on behalf of the Appellant submitted before us that the injured was a brilliant student. He was proficient in sports and games. To prove that fact, he has produced Exts. A-1 to A-10 certificates obtained by him in sports and games. Due to the accident, he had to discontinue his studies for about an year and it is only thereafter, he obtained an admission in the medical college. But in the nature of the claim made by the Appellant in Part I, we find that there is sufficient justification for the Tribunal for not allowing any other claim other than the claim for transportation and extra nourishment already awarded by the Tribunal.

Ext. A-14 is the wound certificate issued by the doctor in respect of the injury sustained by the Appellant, wherein it is noted that the Appellant sustained a fracture of Femur. Ext. A-15 medical certificate would show that he was treated in the hospital as an in-patient from 20th August 1981 to 2nd October 1981. The said certificate also shows that he was advised to take absolute bed rest for a period of three months with traction at home. He was also advised to take gradual exercises. Thereafter, he was examined by a competent medical board and issued Ext. A-16 certificate on 18th October 1982. On a careful examination by the said Medical Board, the Board found that the Appellant is suffering from old fracture of lower end right femur and hence orthopaedically he is handicapped and the resultant disability was assessed to be 5 per cent. In the light of the above documentary evidence, it is proved that the Appellant had suffered great pain and sufferings. The Medical Board certified that he has 5 per cent disability. But the total amount of compensation awarded by the Tribunal for the pain and suffering as well as for the disability was only an amount of Rs. 4,050 on both counts together. In the nature of the evidence adduced in the case, especially Exts. A-14, A-15 and A-16, the Appellant is entitled to get a reasonable amount of Rs. 7,500 for the pain and suffering and a further amount of Rs. 2,500 for the disability that he has due to the accident that had taken place on 20th August 1981. Therefore, the Appellant/claimant is entitled to get a total compensation of-Rs. 10,950. He has also entitled to get 12 per cent interest from 16th December 1981 till the date of payment. He is also entitled to get his costs, both before the Tribunal as well as before this Court in this appeal.

Admittedly, the Petitioner was a passenger in the bus. Learned Counsel for the Insurance Company is, therefore, perfectly justified that in the absence of any comprehensive policy, the Insurance Company is liable only to pay an amount of Rs. 5,000 to the Appellant since the Insurance Company is liable only to that extent under the Act policy relevant at the time of accident. We see that the said contention is perfectly justified. The Insurance Company can, therefore, be held responsible only for an amount of Rs. 5,000 with interest and costs to the Appellant. The remaining part of the award has to be paid by the owner of the vehicle. In this connection, it is pertinent to note the contention raised by the first Respondent who is the registered owner of the vehicle. According to him, he sold the vehicle on 28th October 1980 under an agreement with one Dasan who was put in possession of the vehicle. He had further stated that the said Dasan operated the vehicle for sometime and later by agreement dated 2nd February 1981, Dasan sold the vehicle to one Thankachan. He purchased the said vehicle for him and on behalf of one Estapanose. It is also contended that later, Thankachan released his fights in favour of the abovementioned Estapanose and therefore, according to him, Estapanose, the 6th Respondent in the O.P. (M.V.) No. 278/82 is responsible for payment of the entire balance compensation amount since he is the owner of the vehicle. He has also stated in his written statement that the said Estapanose had agreed to meet all the claims of the injured and he had executed an agreement to that effect on 10th October 1981.

To substantiate the above contentions the first Respondent has not given any evidence before the Tribunal. He has not examined any witness also. He has not produced any document to substantiate that the ownership of the vehicle had already been transferred. The agreement mentioned by him in his written statement had also not been produced. The persons named in his written statement viz. Dasan, Thankachan and Estapanose were not examined in the case. Under such circumstances, it is to be held that the first Respondent, the registered owner alone is to be held responsible for the payment of compensation of the Appellant injured in this case. u/s 31 of the Motor Vehicles Act, the ownership of a motor vehicle registered under the previsions of the Motor Vehicles Act can be transferred only in the manner prescribed in the said section. The relevant portions of Section 31 of the Motor Vehicles Act, 1.939 is extracted below:

Section 31, Transfer of ownership.-

(1) Where the ownership of any vehicle registered under this Chapter is transferred,-

(a) the transferor shall-

(i) within fourteen days of the transfer, report the fact of transfer to the registering authority within whose jurisdiction the transfer is to be effected, and shall simultaneously send a copy of the said report to the transferee;

(ii) within forty-five days of the transfer, forward to the registering authority referred to in Sub-clause (1)-

(A) a no objection certificate obtained u/s 29A;

(B) in a case where no such certificate has been obtained,-

(I) a receipt obtained under Sub-section (2) of Section 29A; or

(II) a postal acknowledgment received by the transferor if he has sent an application in this behalf by registered post acknowledgement due to the registering authority referred to in Section 29A.

together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted.

(b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he resides, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration.

* * *

(2) A registering authority other than the original registering authority making any such entry shall communicate the transfer of ownership to the original registering authority.

As can be seen from the provisions of Section 31 of the Act, till the transfer of ownership is entered in the certificate of registration, one has to take it that the person in whose favour such certificate of registration is issued by the competent authority is the owner unless otherwise established by legal evidence. u/s 31 of the Act, an intimation of transfer of the vehicle to the registering authority by the transferor is contemplated. Even the mere intimation of the transfer of the vehicle by the transferor will not put an end to his liability as a registered owner. It cannot also be said that merely because transferee intimates the registering authority of the transfer, the transfer becomes effective in the sense that the transferor ceases to be the registered owner for the purpose of the Motor Vehicles Act. The Act recognises the registered owner as the real owner for all practical purposes. He is subject to certain obligations and he continues to be the registered owner so long as in the register, he is found to be such registered owner. So also merely because a registered owner intimates the registering authority that he had transferred the vehicle, the transfer cannot become effective because it will not bind the alleged transferee unless that is accepted by him and is proved to be true. It is true that the registered owner can transfer possession of the vehicle on the basis of a valid and legal agreement to Anr. person and possession is given to that person. But such transfer of possession has to be specifically pleaded and proved by legal evidence before the Tribunal. For the purpose of the Act, u/s 31, a report similar to the one submitted by the transferor to be submitted by the transferee also along with the report of the transfer. That alone will indicate that both the transferor and the transferee agree to the transfer. Payment of prescribed fee and submission of certificate of registration so as to enable the entry to be made in the certificate are also conditions to effect such transfer. But no such action was adopted by the 1st Respondent in this case. This being the scheme of the provisions in Section 31, it cannot be said that the first Respondent cases to be the owner of the vehicle in question as claimed by him in his written statement. As stated earlier, he has not even cared to give evidence before the Tribunal regarding the alleged transfer of the vehicle in favour of the various persons mentioned in the written statements. Under Sections 31 and 96 of the Motor Vehicles Act, if there is a transfer of ownership of the vehicle, the insurance policy taken by the transferor cannot be taken to subsist unless the benefits of the policy is also transferred to the transferee with the knowledge and consent of the insurance company. Section 31 of the Act could not have the effect of getting the policy alive qua third parties, that change of registry u/s 31 was not a condition precedent for transfer of ownership of the vehicle. The said section merely imposes an obligation both on the transferor and the transferee of the vehicle, to notify the transfer and the non-compliance thereof will not invalidate the transfer as such which has already taken place, if sale had actually taken place. As stated earlier, along with the transfer of ownership of the vehicle, the insurance policy also had to be transferred with the concurrence of the insurance company. Otherwise the benefits of the policy cannot be claimed by the transferee. In the light of the above legal position, we have no hesitation to reject the contention raised by the first Respondent in his written statement before the Tribunal.

We, therefore, modify the award passed by the Tribunal and direct payment of the balance amount due as per this judgment by the first Respondent. The Appellant/claimant is entitled to take appropriate steps to recover the said amount from the first Respondent.

The award is modified to the extent indicated above and the appeal is disposed of accordingly. The Advocate Fee in this appeal is fixed at Rs. 1,000.